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The Court of Appeal has confirmed that the narrow comparator test set down by the House of Lords in London Borough of Lewisham v Malcolm (2008) (a housing case) applies to employment cases of disability-related discrimination (Aylott v Stockton-on-Tees Borough Council).

Mr Aylott worked for Stockton-on-Tees Borough Council. He suffers from bipolar disorder. There had been a number of issues at work, including numerous grievances brought by Mr Aylott, a high level of sickness absence and an outburst at work, which convinced his manager he was not fit to return.

After several months of further sickness absence, the Council dismissed the claimant on the grounds of capability. Mr Aylott commenced employment tribunal proceedings and was successful in his claims for direct disability discrimination and disability-related discrimination. The tribunal found that the Council had displayed a "stereotypical view of mental illness".

The Court of Appeal agreed that Mr Aylott had been subjected to direct disability discrimination and that, in such cases, there is essentially a single question to be asked: "did the claimant on the grounds of disability receive less favourable treatment than others?". Mr Aylott's mental disability had been the ground of his dismissal, as evidenced by the Council's stereotypical view of and reactions to mental illness.

The Court emphasised that the decision in Malcolm applies in employment cases and so the proper comparator when disability-related discrimination is alleged is a person who has behaved in the same way as the claimant, but who does not suffer from the claimant's disability.

Impact on employers

Because the Malcolm case makes claims of disability related discrimination very difficult for employees, they are currently more likely to focus on failures to make reasonable adjustments when bringing claims for disability discrimination.

However, the balance will be redressed from 1 October 2010 as the Equality Act 2010 will introduce a new concept of "discrimination arising from disability" which will prohibit an employer from treating a disabled employee in a way which, because of their disability, is to their detriment and which cannot be objectively justified. This new category of discrimination does not require reference to a comparator, thus allowing tribunals to focus instead on whether the detrimental treatment is linked to the disability.

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